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KUCTRIO PASaKNOIR AND PRCIOHT. Patint Stccl Sorkw Bivt PAasiNaiR and Friioht. Patcnt Spur Qkam Friioht, Hand and Sioiwalk. BOSTOir. NKW YORK. H and M Liberty Street. DBTBOIT. Hedges Building. nUDADBLPHIA, UlS Filbert Street. Bf State Straet. ATLAKTA, Ol., Inman RulldlnK, PiGturesqoe Trunk Line ot ttrica. THE ONLY LINE WHOSE TRAINS ARE EVERYWHERE PROTECTED BY BLOCK SAFETY SIGNALS. Solid Vestibuled Trains BETWEEN NEW YORK AND BUFFALO, NIAGARA FALLS, CLEVELAND, CINCINNATI, CHICAGO. I us D. I. ROBERTS. General Paaaenscr Agrent. Cnpyrlf hi, 18W>, by {.lotd Bsyos. All rights reserved. Bnterad «t the Post-OIBoe at New Tork . Sbd admittad for traasintMlon throoffh the mails, M Moond-elas* msttar. f Combined HT. aiR AND FmiOHT* <| ID AHO SlOSWALKt f ' BOSTON, 6>BtMeStf«et.< lKTA, Ol, iRoUdtiiK, AINS FALLS, kGO. RESULTS OF THE BERING SEA ARBITRATION. BY THE HON. JOHN W. FOSTER, EX-SEORBTARY OF STATE. The United States stand distinguised among the nations as tlie foremost champion of international arbitration. Our ablest and wisest statesmen have recognized it as the best way of adjust- ing most questions of difference arising between governments, when the ordinary diplomatic methods fail. Such being the set- tled policy of the country, it would be unfortunate for the cause of peace and civilization in the world if that policy should be prej- udiced in the United States for want of oorrect information or through partisan bias. ' One of the last arbitrations in "-hich the United States par- ticipated was that held at Paris in 1893 for the settlement of the questions which had arisen with Great Britain respecting the fur seals of the Pribylov Islands in Boring Sea; and the impression seems to prevail with many of our people that this arbitration was unwisely entered upon, that it was fruitless in its results to us, and that the responsibility for the failure is chargeable to the ad- ministration which agreed to it. Every one of these conclusions is incorrect, and, in the interest of the great cause of international arbitration, their fallacy should be exposed. It seems the more opportune at this time, as the subject is likely to be presented anew to Congress at its approaching seseion. It is well, in the first place, to examine the origin of the con- troversy. Alaska was ceded by Russia to the United States in 1867, and in 1870 the Seal Islands in Bering Sea were leased by the government to a private company, with the privilege of tak- ing on the land a certain number of seals annually. Soon there- after it became apparent that the seal herd was exposed to serious diminution by means of pelagic or open sea hunting. As early as 187^ the attention of the government was called to this ■aond^tiM mattar. 694 THE NORTH AMERICAN REVIEW. danger, and it was snggcsted that a revenae cutter be sent to cruise in the vicinity of the passes of the Aleutian chain, through which the herd travelled on its way to and from the Seal Islands, with a view to preventing such hunting. But Mr. Boutwell, Sec- retary of the Treasury, declined to act upon the suggestion, stat- ing : " I do not see that the United States would have the jurisdiction ory power to drive off parties going up there for that purpose, unless they made the attempt within a marine league f the shore." With the progress of time pelagic hunting increased along the Canadian and American coasts, with greater slaughter of the herd, and with occasional incursions into Bering Sea. There was gradually developed a contention that the principle laid down by Secretary Boutwell did not apply to Bering Sea, be- cause Bussia had claimed and enforced exclusive jurisdiction over all its waters, that it had been acquiesced in by the maritime nations, including Great Britain, and that all the rights of Russia therein passed to the United States by the cession. The act of Congress of 1868 (Section 1956) made it unlawful to kill seals " within the limits of Alaska Territory or in the waters If Jiereof," and it was claimed that the waters of Alaska embraced all that portion of Bering Sea east of the line designated in the Russian treaty of cession. Under the foregoing construction of the treaty and the statute, the first seizure of British vessels in Bering Sea took place under instructions of the Secretary of the Treasury by the Revenue vessels in 1886, and other seizures followed in 1887. Suits were instituted in the Federal Court at Sitka under the Act cited and the vessels were condemned. The judge, whose tenure of office under the practice in vogue as to that Terri- tory was limited to the political administration which appointed him, following the line of argument submitted by the District Attorney in a brief prepared in the office of the Attorney- General, held that "all the waters within the boundary set forth in the treaty . . . are to be consiaered as comprised within the waters of Alaska, and- all the penalties prescribed by law . . . must therefore attach within those limits." He further held that " as a matter of international law, it makes no difference that the accused parties may be subjects of Great Britain. Russia had claimed and exercised jurisdiction over all that portion of Bering Sea <. . . and that claim had been tacitly recognized and acquiesced in by the other maritime powers of the world." RESULTS OF THE BERING SEA ARBITRATION. 695 be sent to , through al Islands, twell, Sec- stion, atat- have the re for that league f ; increased r slanghter ering Sea. B principle ng Sea, be- liction over le maritime bs of Rnssia The act of to kill seals rs'ifliereof," ed all that the Russian tion of the Is in Bering he Treasury followed in Sitka under The judge, > that Terri- 1 appointed the District ley- General, orth in the within the .aw • • • ler held that nee that the Russia had )n of Bering ognized and rid." ; The seizure and condemnation of the British vessels were fol- lowed by an attempt to secure a more precise and strict definition of "the waters of Alaska" by Congressional legislation. A lengthy investigation was had by a Committee of the House of Representatives in 1888 ; and in January, 1889, a report was made by Mr. Dunn, of Arkansas, chairman of the Committee, fully sustaining the view taken by the AttDrney-General and the Federal Judge in Alaska, and submitting a bill which declared " that Section 1956 of the Revised Statutes of the United States was intended to include and apply to, and is hereby declared to include and apply to, all waters of Bering Sea in Alaska embraced within the boundary lines " of the treaty with Russia. This bill was passed by the House, but in the Senate it was sent to the Committee on Foreign Relations, and that Committee recommended that the clause above quoted be disagreed to ; and the chairman, Mr. "Sherman, in support of the recommendation, stated that the proposed legislation "involved serious matters of international law . . . and ought to be disagreed to and abandoned, and considered more carefully hereafter." Subse- quently, by virtue of a conference report, an act was passed declaring Section 1956 to include and apply " to all the dominion of the United States in the waters of Bering Sea." The seizure and condemnation of vessels as stated constitute the origin and foundation of the complaint of the British Govern- ment and of the lengthy correspondence and negotiations which resulted in the arbitration at Paris. These seizures were the act of the administration of President Cleveland, and had the in- dorsement of the executive, politico-judicial and legislative de- partments of that administration. In so far as the views of the opposing political party may be inferred from the attitude of Secretary Boutwell and Senator Sherman, they were against the legality or wisdom of the policy. The complaint of Great Britain in 1887 was followed by a diplomatic correspondence, in which Secretary Bayard, without discussing or yielding the grounds upon which the seizures had been made, proposed an international arrangement for the protec- tion of the seals from extermination. With this proposition pend- ing and with all the questions arising out of the seizures unsettled, the executive government of the United States passed into the hands of President Harrison. Mr. Blaine, on assuming the duties 'it 163372 696 THE NORTH AMERICAN REVIEW. of Secretary of State, sought to carry into effect the proposition of his predecessor for an international agreement. He found that few of the governments approached had shown any interest in the proposition, but early in the administration he pressed the sub- ject upon the attention of Great Britain, and as soon as possible secured a joint conference at Washington with the British and Russian Ministers. After prolonged interviews the conference proved a failure, as Great Britain was unwilling to enter into any international arrangement which the two other interested powers felt was at all adequate to protect the seals from extermination. The measure which Secretary Bayard had initiated for the settlement of the questions arising out of the seizure of British vessels having proved impossible of realization, there seemed no other alternative but to defend the action of the previous adminis- tration ; and thereupon followed the notable diplomatic corre- spondence between Mr. Blaine and Lord Salisbury, in which the former sought with all his recognized forensic skill to defend the action of the Secretary of the Treasury in ordering the seizures and, as far as he felt it possible to do so, to sustain the correctness in international law of the attitude of the Attorney- General and the Judge of the Federal Court of Alaska. In no part of that statesman's career did his devotion to his country more conspicuously rise above partisanship than iu that corre- spondence. It is doubtful if any other living American could have made a more brilliant or eflectiveliefence of the action of his government, and whatever fallacies exist in his argument are chargeable to the previous administration which had occasioned the controversy and marked out the line of defence. The correspondence showed the two governments in hopeless disagreement. Three courses were open to President Harrison, and one of them must be chosen without further delay. First : He could abandon the claim of exclusive jurisdiction over Bering Sea or protection of the seals beyond the three mile limit, recede from the action of his predecessor as to seizure of British vessels and pay the damages claimed therefor. Such a course would have met with the general disapproval of the nation, and would have been denounced by his political opponents as a base betrayal of the country's interests. Second : He could have rejected the arguments and protests of the British Government, and continued the policy initiated by his predecessor in the seizure •I RESULTS OF THE BERING SEA ARBITRATION. 697 jposition und that ist in the the Bub- ) possible itish and nference into any d powers nation. for the ){ British iemed no iadminis- tic corre- Hrhich tiie ,0 defend ering the istain the Attorney- a. In no s country hat corre- ican could tion of his Linient are occasioned a hopeless Harrison, y. First : stion over mile limit, seizure of '. Such a the nation, aents as a could have (vernment, the seizure of all British vessels engaged in pelagic sealing in Bering Sea. But this course had already been proposed to President Cleveland and decided to be iinproper. Tlie Hon. E. J. Phelps, who as Minister to Qreat Britain had conducted the negotiations with Lord Salisbury growing out of the seizures of 1880 and 1887, in a lengthy dispatch to Secretary Buyard, reviewing the conduct of Canada which had prevented an adjustment once accepted by Lord Salisbury, made the following recommendation : " Under these circumstances, the Govrnment of the United States must, in my opinion, either submit xo have these valuable fisheries de- stroyed or must take measures to prevent their destruction by capturing the vessels employed in it. Between these two alterna- tives it does not appear to me there should be the slightest hesita- tion. ... I earnestly recommend, therefore, that the vessels that have been seized while engaged in this business be firmly . held, and that measures be taken to capture and hold every one hereafter found concerned in it. . . . There need be no fear that a resolute stand on this subject will at onne pr': an end to the mischief complained of." But this reoon.- mendation of Mr. Phelps was not approved by Mr. Bayard, who was unwilling to adopt a course which might bring about a rupture with Great Britain, the probable outcome of which would have been an armed conflict. In view of this, decision and the state of public sentiment, with a prevailing opinion in a large part of the press and with public men that the attitude of the government was legally unsound, and that the interests involved did not under the circumstances stated justify the hazard of a great war between these two English-speaking nations, the adoption of this second alternative by President Harrison would have been the height of madness. The only re- maining alternative was arbitration. President Harrison felt that if we could commit to an international tribunal the far greater interests and principles involved in the Alabama Claims, it would be the part of wisdom to adopt the same course as to the pending questions of difference, and there can be no doubt that the sober judgment of the country confirms his action. If, therefore, the Paris arbitration was unwise in any of its features it must have been in the manner of submission of the questions to the Tribunal. But in this respect, also, the conduct of President Harrison was greatly restricted by the action of his 698 THE NORTH AMERICAN REVIEW. predecessor. I/e was required to formulate for the decision of the Tribunal the contentions upon which the seizures were madie, and the first four points embraced in article VI. of the treaty will be found to accurately cover the grounds upon which the Attor- ney-General in 1887 asked for, and the Federal Judge based, the condemnation of the British vessels. It is a singular incident that when the case of the United States came to be prepared and the Russian archives were examined, what had been assumed in the legal proceedings to be historical facts could scarcely be sub- stantiated by a single official document. It is also notable that the only additional question introduced in the treaty provisiou for Bubn. ission to the Tribunal — that embraced in th "fth point, to wit, the right of protection or property in the seals, and which in the judgment of the counsel of the United States be- came the leading, if not the only, defence of the seizures — wrj 'not advanced in the legal proceedings of 1887, and was not mooted until a late stage of Mr. Blaine's controversy with Lord Salisbury. The chief credit for the development of this point is due to Mr. Tracy, Secretary o' the Navy, who submitted a paper of rare legal ability on the subject to the President, which at a later date appeared in this Review.* The treaty after having undergone the careful scrutiny of the President and Hon. E. J. Phelps, whose advice had been sought by the President, was sub- mitted to the Senate and approved by that body without a single dissenting voice, so far as known. If the conduct of the Presi- dent, in the management of the controversy created by his pre- decessor, had not been in the judgment of the country wise and patriotic, or if the provisions of the treaty had not been properly framed, it would scarcely have escaped the attention of his politi- cal opponents in the Senate. Hence, the only remaining criticism which might be advanced against the arbitration must relate to the management of the case before the Tribunal. But in this respect also it must be recog- nized that the President's action was circumspect and free from all partisanship. In naming the arbitrators on the part of the United States, he chose, with the cordial approval of the Chief Justice and his associates, Mr. Justice Harlan of the Supreme Court, as senior American member of the Tribunal. In filling the second place he selected Senator Morgan, the recognized • KORTB AIORIOAN Retiiw, Mar, 1893. decision of were made, I treaty will . the Attor- e baaod, the ar incident repared and assumed in cely be sub- lotable that ty provisiou fth point, seals, and d States be- lizures — wpj nd was not with Lord this point is tted a paper t, which at after having [ Hon. E. J. nt, was sub- loiit a single )f the Presi- by his pre- try wise and Ben properly of his politi- be advanced t of the case ist be recog- id free from part of the )f the Chief he Supreme 1. In filling 1 recognized RESULTS OF THE BERINO SEA ARBITRATTON. 699 leader on all international questions in the Senate of the party whose officials had originated the subject matter of arbitration. Hon. E. J. Phelps, President Cleveland's Minister in London, an experienced diplomatist tind a Icwyer of national repute, had been consulted by the President . -^ral months before the treaty had been agreed upon, and when t < ^ase came to be prepared he was named as senior connsol. With him was associated James C. Carter, of New York, the rec> aized leader of t)iu American bar ; and before the tribunal wud ..ganizod Frp-^orick R. Coudert, an accomplished French scholar and a i)rominent jurist, wis added to the list. These three srentlet jn were the political friends of Mr. Cleveland. With them vas joined a single party friend of President Harrison, H. W. Blodget*-, for many years a distin- guished judge of the Federal Court. Senator Morgan in a recent letter says : " Our party was and is responsible for using the means that were employed both for the raising and the settlement of these questions, and it was a just measure of responsibility that Mr. Harrison devolved upon us when, out of a body of arbitra- tors and counsel and Mr. Secretary Foster, the Agent, selected by him — seven in all — he selected four Democrats and three Re- publicans." As to the manner in Avhich these gentlemen dis- charged their trust we have the following testimony of Mr. Jus- tice Harlan, in a public address : "I may say that no govern- ment was ever represented upon any occasion where its interests were involved with more fidelity, with more industry and with greater ability than was the United States by its agent and coun- sel. ... If more was not obtained it was solely because a majority of that tribunal . . . did not see their way to grant more." On five points submitted to the Tribunal, embi-acing the historical and legal questions, the decision was unfavorable to the United States. While the action of the government in making the seizures was based on the weakest ground of our defence and which proved untbnHble, it cannot be doubted that the motives which actuated its conduct were patriotic and praiseworthy. But had our effort to save the seais from destruction been from the outset based upon a right of protection and property in them, our case before the Tribunal would have been much stronger and the decision might have been different. Nevertheless, it cannot be justly claimed that the arbitration was fruitless in its results k 700 THE NORTH AMERICAN REVIEW, i> for us. It is no small matter that a question which threatened a rupture of our peaceful relations with Great Britain was adjusted by a resort to therarbitrameut of reason and not of force. The Alaskan seal herd li of great value to us and to the world, and it is the duty of our government to be vigilant in protecting it from destruction ; but the legal issues involved in our contro- versy with Great Britain regarding them did not seem to justify the hazard of an armed conflict, and it was a great gain to us that the controversy was peacefully settled without national dis- honor. The decision of the Tribunal was adverse to the United States on the legal points in dispute, but the award contained an import- ant provision for international regulations, which were intended by the Tribunal to be a protection to the seals and which in the judgment of the majority of that body would in practice prove an adequate protection. The agent and counsel of the United States contended that no regulations would be a certain protec- tion of the herd which did not prohibit all pelagic sealing, and the American arbitrators voted for such prohibition, and sustained their votes by very able and cogent opinions ; but the majority of the Tribunal took a different view of the pubject. The regula- tions adopted were opposed both by the American and Canadian arbitrators. When first published they were accepted by all the Americans who participated in the arbitration as a decided triumph for the United States, and were regarded by the Cana- dian sealers as a serious menace, if not a death-blow, to their in- terests. If they are carefully examined they will be found to be more favorable to the United States than the regulations which Mr. Bayard proposed to Lord Salisbury as a settlement of the question, or which Mr. Blaine offered to Sir Julian Pauncefotu. If, therefore, we obtained more from the Tribunal than our goT- ernment proposed to accept from Great Britain, the arbitration cannot justly be characterized as fruitless in its results for us. The adequacy of the regulations cannot be properly judged, be- cause they have not yet been put in force in their true spirit nval intent. This will not be done nntil they are also made to apply to the Russian waters, and untu more stringent rules for their enforcement are adopted. It has boon a source of disp^ipointment to many who have taken an interest in the preservation of the seals that these rules have been so lax and so imperfectly observed. RESULTS OF THE BERING SEA ARBITRATION. 701 eatened a I adjasted rce. The Id, and it tecting it ar contro- to justify gain to us bional dis- ited States in import- e intended ich in the tice prove he United *in protec- aling, and i sustained majority of 'he regula- Ganadian by all the a decided the Cana- their in- 'ound to be ions which lent of the 'auncefotu. ,n our gov- arbitration .Its for us, udged, be- B spirit anil le to apply s for their opointment lion of the y observed. The obstruction in these respects is now, as it has been from the beginning, the selfish and inhuman conduct of Canada. The purpose of this article, to wit, the defence of the policy of international arbitration, has been accomplished ; as it has been shown by the foregoing review that the Paris arbitration was not unwisely entered upon, that it was not altogether fruitless in its results for us, and that the administration which agreed to it cannot be held culpable for the manner of its submission or man- agement. But it will naturally be expected that something be said concerning the question of damages, a subject which was not settled by the award. In article VIII. of the Treaty it was ex- pressly stipulated that "the question of liability of each for the injuries alleged to have been sustained by the other" should not be embraced in the arbitration, but should " be the subject of future negotiation." In the discussion following the adjournment of the Tribunal, the fact seems to have been lost sight of that the United States preferred serious claims for damages against Qreat Britain on account of the injuries done by British pelagic sealers to the Alaskan seal herd, and that President Hurrison proposed that this question of damages should, together with the British claims for seizure of vessels, be submitted to the Tribunal. It was because Great Britain refused to consent to arbitrate this claim that the whole subject was omitted. The award of the Tribunal was in effect that in certain waters, and at certain times, pelagic sealing is improper and should not be permitted. How far the claim of the United States subsists for injuries in the past sustained by the seal herd in those times and waters is one of the questions to be determined by the " future negotiations" contemplated in the Treaty ; and prominent persons well informed as to the contro- vei^sy contend that it is still a vital question. Whilo the liability for damages was not within the jurisdic- tion of the Tribunal, it is generally admitted that the effect of its decision was to fix upon the United States a certain measure of responsibility for damages on account of the seizures, which would have to be met through the "future negotiations." With- out further investigation than the documentary evidence before the Paris Tribunal, the sum of 1425,000 was agreed upon be- tween the Secretary of State and the British Embassador as a full satisfaction of the claims for the seizure of the British vessels, and the Oongress of the United States was asked to make an 702 THE NORTH AMERICAN REVIEW. appropriation for that purpose. In the discussion which arose in the House of Representatives when the subject came before that body it was most unfortunate that it should have assumed a partisan aspect. When certain members argued that the sum asked for was greatly in excess of the just and legal claims of the Canadian sealers, and that it was in direct conflict with the views of the Agent and Counsel of the United States before the Tribunal, they were taunted with the charge that this obligation had been contracted by the administration of which they were supporters. The member of the Committee on Appropriations who had the measure in charge said : " This is not our foreign policy. We are paying a debt which you gentlemen gave us." Mr. McCreary, Chairman of the Committee on Foreign Affairs, in advocacy of the appropriation, used this language: "I regret that we have been placed in an attitude where we have to pay this amount ; but the gentlemen on the other side of this House cannot claim that we caused the existing situation." How unwarranted were these assertions is shown in the foregoing review. It may have been the wisest policy to vote the appropriation, but it was no breach of our international obligations not to ap- prove of that sum ; and it is not to the discredit of Congress that it exercised its judgment as to the action of the executive in agreeing to a settlement with Great Britain which altogether ig- nored the claim of the United States for damages to the seals by improper pf'lagic hunting, and the views of its own representa- tives before the Tribunal as to the British claims. While a dif- ference of views may properly exist between the executive and legislative departments upon these subordinate questions, no dis- position has been entertained or shown by any portion of our government or people to evade our just obligations under the Treaty. And the fact that the spirit of the award leads us to pay out of the national treasury a sum by way of damages, which at the most must be regarded as insignificant for a great nation, should certainly have no tendency to modify in the slightest de- gree our devotion to the great policy of international arbitration. John W. Foster. ings. l!! «h arose e before samed a ;he sum IS of the > views of llribunal, [lad been pporters. ) had the icy. We ilcOreary, Lvocacy of b we have 1 amount ; mot claim tnted were (ropi'iation, not to ap- |ngres8 that :ecutive in together ig- ,he seals by representa- ^Vhile a dif- icutive and Ions, no dis- ;ion of our under the Ids ns to pay SB, which at :eat nation, ilightest de- arbitration. Foster. KINNEAR teel Ceiling fg Jfata/ Parttthat. Skutitra and Boon- Fire-Water-Tlme Proof. I Banka, OhwohM, OhilM, Pnblio and Private HngB. 8«td for book. "Imtulor DteonMoat," Ing many new and attnwstlTe designs at mod- PEAR ft GAGER CO., Columbus. O. ■ASTBRN AOBNTB: ^KSOBB ft Co., 4 LiBBRTT SQUARE, BOSTON. DOES ANYTHING PHOTOGRAPHIC- ^ Pocket Kodak. PMkrt Kwhli, iMrfcd ttrUrttuntft'Axi, • $».W D*nhpla(uMfMCM rum Qmrnmn oommm mAOK*' Iben cytlUiit dan lore uc on to thoucbt* of whaeto, pnd "which shall U be?" People et Rood tatta and iud||ii>«it, knoifiag thair 'high itandinc, aimpv 19 OOhIAMkI sWcr* Yon - Girra. •bent Cmnnus er than a RamMar? . Cmtaitgu* mA« m^ieaiian, Brttntk Hnua and Siding Acmdtmitt! Bbtton. Waahlngton. New York rooklTD, DMroit ' Covanlr|;>Bng. GORHULLY ft JBFFBRY MFO. Ca 09 7\ PIAPiOS. K. CHtl ico. («■ Pl^iHOS. Uaad Mftf' ■iflomll br w for, and be genuine foods. Limited, ^^¥ i' u M«S BAOK" to tboncbt* til it be?" Judnouit, D«, limply .or* Cmnnus Runbterf ithn. icmdtmin: m. New York raatfjPvBni. Myo. ca by J.li .. LJJI ,. ESSSH